Principles and practices of EU external representation - Asser Institute

Accession to the ECHR as the final step of mutual recognitiontion, a rebuttable presumption of equivalent protection applies which leads theECtHR to exercise full judicial review only if the protection under EU law provedto be ‘manifestly deficient’ in the individual case (the Bosphorus presumption 40 ).The present situation does not exclude gaps where the act is an act of the EUrather than its Member States – be it the implementation or adoption of secondaryEU law. A case in point is Connolly, which concerned the application of anemployee of the European Commission, who challenged a disciplinary procedurethat had resulted in the suspension of the applicant from work. 41 TheECtHR rejected the admissibility ratione personae because it could not establisha link between the ‘supranational act’ and the Contracting Parties.The decision of whether a Member State can be held responsible for an actof the EU or whether the act exclusively falls within the internal sphere of theEU and cannot therefore be attributed to the Member States, requires considerationof the power division between the EU and its Member States, includingthe internal workings of the EU. Even at present (pre-accession), the ECtHRregularly gives judgments that are relevant for the EU. 42 To substantiate thispoint, it is sufficient to look at 2011 only. The Court gave four rulings which(might have at least) potentially required an interpretation of EU law. First, thecase of Pietro Pianese 43 could have led to a ruling on the lawfulness of theEuropean Arrest Warrant (EAW). The applicant had argued before the StrasbourgCourt that his arrest and detention under this EU law instrument wasunlawful. However, the case was declared inadmissible under Article 35 ECHRbecause it was out of time and manifestly ill-founded. Second, in the welldiscussedcase of MSS, 44 the Strasbourg Court found inter alia that Belgiumhad violated the Convention by acting in compliance with rules of EU asylumlaw (Dublin II Regulation 45 ). Belgium had sent an Afghan asylum seeker backto Greece, where he had first entered the EU. This was in line with the rules ofthe Dublin II system. However, EU law did not require Belgium to act this way. 46Hence, even though the MSS ruling questioned the blind mutual trust on whichthe EU asylum law is built (see e.g. the presumption that all EU Member StatesAppl. No. 11123/84 – manifestly ill-founded. No margin of discretion: Bosphorus Airways v. Ireland,supra note 33; see similarly: Commission, M & Co. v. Federal Republic of Germany, ECHR(1990), Appl. No. 13258/87.40 Bosphorus Airways v. Ireland, supra note 33; this presumption was subsequently successfullyapplied, e.g. in ECtHR, Biret v 15 EU Member States, ECHR (2008), Appl. No. 13762/04.41 ECtHR, Connolly vs Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland,Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden, and UK, ECHR (2008), Appl.No. 73274/01 (available in French only). See similarly: ECtHR, Boivin v 34 Member States of theCouncil of Europe, ECHR (2008), Appl. No. 73250/01.42 See for more examples before 2011: C. Eckes, supra note 29.43 ECtHR, Pietro Pianese v. Italy and the Netherlands, ECHR (2011), Appl. No. 14929/08.44 ECtHR, M.S.S. v. Belgium and Greece, ECHR (2011), Appl. No. 30696/09. Numerous casesthat raise similar allegations are pending before the court.45 Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria andmechanisms for determining the Member State responsible for examining an asylum applicationlodged in one of the Member States by a third-country national, OJ 2003 L 50/1.46 See the general ‘first entry’ rule in Art. 3(1) Council Regulation (EC) No 343/2003, ibid., andthe possibility for Belgium to derogate from that rule and take charge of the application in Art. 3(2)Council Regulation (EC) No 343/2003, ibid.109CLEER WORKING PAPERS 2012/5